There are circuit splits involving almost everything. There are even circuit splits about circuit splits. See, e.g., Cuellar de Osorio v. Napolitano, 2012 U.S. App. Lexis 20177 (9th Cir. September 26, 2012) (“[T]here is currently a circuit split over whether the existence of a circuit split is evidence of statutory ambiguity”) (M. Smith, J., dissenting). This article explores some circuit splits on procedural issues of practical importance.
District court review of magistrate judge’s report and recommendation (R&R). Under 28 U.S.C. 636(b)(1), a district court reviewing an R&R “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” In light of the fact that the review is de novo, the questions dividing the circuits concern whether the district judge may or must consider either legal arguments or evidence not submitted to the magistrate judge.
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